Patent cases are generally more expensive than any other complex litigation. Many jurisdictions have local patent rules that require extensive disclosures between the parties and briefing on the scope of any asserted patents early in the case, all of which increase attorney fees and costs. Hence, an effective strategy to minimize the total spend in patent cases is to take the offense early to encourage the patent holder to dismiss the suit or settle as early as possible on defense-favorable terms.

This approach is particularly effective when defending against a patent infringement suit brought by a nonpracticing entity, commonly referred to as a “patent troll.” In the past few years, NPEs have filed the vast majority of patent cases. Their goal is to settle for as much as possible as early as possible. While defendants commonly want to settle early as well, their goals are to settle for as little as possible and discourage future NPE suits. NPEs resist settling early on defense-favorable terms, as it provides minimal return and such a settlement may be used by other defendants. Hence, a defendant must take the offense early to create the leverage needed to compel an NPE to voluntarily dismiss its claim or accept a defense-favorable settlement.

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